The departure, last Monday, of one of the High Court's most remarkable judges, Michael Kirby, somewhat overshadowed some of his last judgments, one of which caused visible annoyance to the Chief Justice, Bob French. The case involved the Commonwealth's intervention into Aboriginal affairs in the Northern Territory in the dying days of the former Howard government. As a part of this takeover, ostensibly so as to rescue Aboriginal children from physical and sexual abuse, the Commonwealth took control of land in the town areas of NT Aboriginal townships and settlements. It did this so that it would have land upon which it could build for any new services developed, including accommodation. The assumption of control was pronounced to be temporary, under a form of imposed lease, and not to derogate from Aboriginal land title, it explicitly did not involve any consultation or agreement with the landholders. A mechanism was provided for compensation, if it was due. A representative number of Aborigines challenged the takeover as violating constitutional requirements that the acquisition of lands be ''on just terms''. The Commonwealth made a pre-emptive challenge to the litigation: the first plank of its argument was that when the Commonwealth took over property in Australian territories, including the ACT, it was not subject to the ''just terms'' requirement, because of the unrestricted nature of the Commonwealth's power to legislate in relation to territories. The Commonwealth said that in any event, its legislation provided a mechanism for compensation which would have satisfied the definition of just terms.

The High Court agreed with the second proposition. But not before it overruled one of its previous decisions that just terms were not required in land acquisitions in Australian territories. The Constitution had to be read as a whole document, rather than section by section, it said. Though the Section 122 territories power was in a different chapter and conferred plenary powers of its own, the exercise of those powers was to be read as constrained by any limitations in Section 51, or any other section (such as Section 116 which prohibits the establishment of a religion). Thus the first plank of the demurrer was unanimously rejected. But, all but Kirby thought, provisions for compensation were fair, and the plaintiffs did not have a leg to stand on. Case summarily dismissed.

Kirby did not necessarily disagree but thought that the plaintiffs ought to have been able to have an opportunity to develop their arguments about whether the compensation arrangements were fair or not. In one sense, if not explicitly, he was picking up the ''vibe'' argument from the movie The Castle; the vibe being bad because it involved the rights of Aborigines over whom the court had, or ought to have, an especially concerned and protective role. The circumstances of the case, he pointed out, could only ever have affected Aborigines: no government would ever have dared to act unilaterally without any consultation the rights of other Australians in this way. Moreover, the nature of Aboriginal relationships with land, particularly in traditional areas, was such that the fairness or justice of acquisition could have a different character than a takeover of the land of other citizens. French, himself a former Aboriginal native title commissioner, said in his judgment that he found Kirby's comments ''gratuitous'', but in doing so, seemed to miss a part of Kirby's point. He was not suggesting that the court was treating Aborigines differently because they were Aboriginal; he was arguing, in effect, that treating Aboriginal rights as though they were exactly the same as any other rights enjoyed by others might effectively discriminate against them. Though Kirby did not say so, the observer might find some perfect examples in old High Court jurisprudence, as when, for example, a 1950s High Court rubber-stamped discriminatory and unfair treatment of artist Albert Namatjira. On paper, Namatjira's Aboriginality had not been an issue. He was able to be treated as he was because government had made him a ward of the state, as it had with every other Aborigine in the Northern Territory and no other people. Somewhat the same process might be observed by the way that some governments, and some businesses, maintain effective discrimination against Aborigines while vehemently denying doing so, by reference to apparently non-discriminatory ''dress rules'' or dog-whistle phrases such as ''long-grassers''.

Legal challenge should not be the primary vehicle for bringing down the Northern Territory intervention. That is a matter for politicians, even if they have so far manifested a want of courage or principle on the subject. Nonetheless, a drift by the modern court away from an anxious concern for Aboriginal rights, which began with a 1996 ruling that the Commonwealth could use its specific powers to legislate over Aboriginal matters to disadvantage as well as to advantage them, ought to be of concern. Indeed it argues for a Bill of Rights, even as it raises doubts about the capacity of some on the present bench to interpret them.